High Court
Case Details
WA No.345 of 2012 BEFORE HON’BLE THE CHIEF JUSTICE MR.A.K. GOEL HON’BLE DR. JUSTICE A.K.RATH For the appellant : Mr.R.C.Sarangi, Advocate. For Respondent Mr.Subir Palit, : Advocate 3. 17.12.2013 ORDER (Dr. A.K. Rath, J.) Challenge is made to the judgment and order dated 21.9.2012 passed by the learned Single Judge in WP(C) No.16953 of 2011, whereby and whereunder the learned Single Judge dismissed the
Legal Reasoning
writ application and thereby confirmed the order dated 17.5.2011 passed by the learned Civil Judge (Junior Division), Bhubaneswar in T.S. No.753 of 2001. By the said order, the learned Civil Judge (Junior Division) allowed the application filed by respondent herein under Order 1 Rule 10 of the Civil Procedure Code for impletion of the party. The appellant as plaintiff laid the suit for declaration of his right, title and interest over the suit schedule land, confirmation of possession and -2- permanent injunction against the State of Orissa and its functionaries in the court of learned Civil Judge (Junior Division), Bhubaneswar in Title Suit No.753 of 2001. In the said suit, the respondent filed an application under Order 1 Rule 10 of the Civil Procedure Code praying, inter alia, to implead him as defendant. The case of the respondent is that the Government of Odisha leased out an area of Ac.3.60 decimals of land appertaining to Plot No.332/1882, Khata No.619 in Unit No.41, Chandrashekharpur, Bhubaneswar on payment of premium of Rs.90,00,000/- to him. Thereafter in a mutation case, the suit land was mutated in his name and record of right was published. He is paying rent to the Tahasildar, Bhubaneswar and as such, he has valid right and substantial interest over the land in question. An objection was filed to the said petition by the appellant. The case of the appellant is that an area of Ac.3.60 decimals of land pertaining to Revenue Plot No.332/1882 under Khata No.619 in Mouza- Chandrashekharpur was leased out to the respondent in November, 2006, i.e. much after filing of the suit by the plaintiff. Moreover, when the order of injunction has been passed by the court below, the lease deed was executed. Furthermore the intervener is neither a necessary party nor proper party to the lis. -3- The said application having been allowed by the trial court, the appellant filed WP(C) No.16953 of 2011. The learned Single Judge by judgment and order dated 21.9.2012 dismissed the writ application and thereby confirmed the order of the trial court.
Legal Reasoning
We have heard Mr.R.C.Sarangi, learned counsel for the appellant and Mr.S.Palit, learned counsel for the respondent. Mr.Sarangi, learned counsel for the appellant, submits that the respondent is neither a necessary party nor proper party to the lis. He further submits that when the order of injunction was in force, the lease deed was executed. The intervenor- lessee as well as the State of Odisha-lessor were all aware of the order of injunction and as such, the lease deed is void one. Under such circumstances, the trial court as well as learned Single Judge committed illegality in allowing the application for intervention. Per contra, Mr.Palit, learned counsel for the respondent, submits that the State of Odisha and its functionaries-defendants have been set ex parte. The respondent was not aware of any order of injunction. The suit land was alienated to respondent at a premium of rupees ninty lakhs by way of registered lease deed. He further submits that respondent is a necessary party to the lis. -4- The apex Court in the case of Vidur Impex and Traders Pvt. Ltd. and others v. Tosh Apartments Pvt. Ltd. and others, AIR 2012 SC 2925 in para-36 of the report held as follows: “36. Though there is apparent conflict in the the observations made aforementioned broad principles which should govern disposal of an application for impleadment are : in judgments, some the of 1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 2. A necessary part is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 3. A proper party is a person whose presence would to enable completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. the Court 4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above broad, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation -5- of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.” There is no denial to the fact that the Government of Orissa executed lease deed in the suit schedule plot in favour of the respondent for a premium of rupees ninty lakhs and that record-of- right has been published in the name of respondent. Furthermore, the State of Orissa and its functionaries have been set ex parte which facts have not been denied by Mr.Sarangi, learned counsel for the petitioner. Since the suit is for declaration of his right, title, interest, confirmation of possession and permanent injunction against the State of Orissa and its functionaries, the respondent-lessee has the legal right in the subject-matter of lis. Considering the facts and circumstances of the present case on the anvil of the decision cited supra, we have no hesitation to hold that respondent is a necessary party to the suit. In view of the same, the judgment and order dated 21.9.2012 passed by the learned Single Judge in WP(C) No.16953 of 2011 warrants no interference. Accordingly, the writ appeal is dismissed. pks .....……………… ......................... Judge Chief Justice -6-